Discrimination

Discrimination is illegal when it is based on a “Protected Class” or “Protected Classification.”  Protected classes, include but are not limited to: Age (over 40), Disability (impairments meeting a certain statutory definition), Race (any), National Origin (any), Color (any), Religion (all major religions and other sincere religious beliefs), Pregnancy (as well as being a person who has given birth and any related ailments), Sex/Gender (any) and other characteristics protected by statute or common law. The following is a nonexclusive list of the most frequent types of discrimination involving Protected Classes, in no particular order, and a brief description of each:

• Age Discrimination – The Age Discrimination in Employment Act (“ADEA”) and the Texas Labor Code (“TLC”) protect employees and applicants over the age of 40 from employment discrimination based their age. Age discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s age. The protections of the ADEA are not available to employees or applicants of a private employer who had less than 20 employees during the required statutory time-period.
• Disability Discrimination – The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (together “ADA”) and the Texas Labor Code protect employees from employment related disability discrimination. Under these statutes, an employee with a disability include someone who:
  • Has physical and/or mental impairments that substantially limit major life activities.
  • Has a history or record of such an impairment; and/or is regarded as having such an impairment.
  • not all impairments amount to a disability. If an impairment does not amount to a disability, an employee may still have a claim under the ADA that they were discriminated against because the employee was “regarded as” having a disability.  This occurs when an employer engages in discriminatory conduct because of an employee’s impairment, even if that impairment does not amount to a disability, and where the impairment is not transitory and minor. An employer who refuses to make a “reasonable accommodation” to enable a disabled employee to perform their job, may also be liable for disability discrimination.  To be entitled to a reasonable accommodation, the employee either must have a physical and/or mental impairment that substantially limit major life activities or a history or record of such an impairment.  Merely being “regarded as” having a disability does not entitle an employee to an accommodation.  A reasonable accommodation is any change to adjustment to the workplace or the job that makes it possible for a disabled employee to do the job.   However, a disabled employee is not entitled to an accommodation which would be unreasonable or which would cause an undue hardship on the employer.  An employer does not have to provide any specific accommodation requested by the employee, but only has to offers an accommodation which is reasonable and accommodates the employee’s disability.  Once a request for an accommodation is received from an employee, an employer must engage in the “Interactive Process” for the purpose of determining if an accommodation is required, and, if so, what accommodation would be reasonable and appropriate. An employer’s refusal to engage in the Interactive Process may be evidence of disability discrimination.  In order to be entitled to the protections of the ADA, the employee much be “qualified” for the job.  A qualified employee is one who hold the necessary degrees, skills, and experience for the job; and who can perform its essential functions, with or without an accommodation. Disability discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s disability.  The ADA and the Texas Labor Code are not available to employees of a private employer who had less than 15 employees during the required statutory time-period. 
• Race Discrimination – Title VII of the Civil Rights Act of 1964 (“Title VII”), the Texas Labor Code and 42 U.S.C. §1981 (“Section 1981”) protect employees and applicants of all races from employment discrimination based their race.  Race discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s race. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.  However, Section 1981 may be available to employees or applicants regardless of the number of employees that the employer has.
• National Origin Discrimination – Title VII and the Texas Labor Code protect employees and applicants of all national origins from employment discrimination based their national origin.  National Origin is distinct from race, however, the two concepts are often intermingled and sometimes can be indistinguishable.  National origin discrimination includes discrimination against a person because of:
  1. that person’s country or region of birth, i.e., the place where they were born; 
  2. their ancestry, i.e., where their parents, grandparents and/or ancestors were born;
  3. their ethnic group; 
  4. ethnic appearance;
  5. ethnic culture;
  6. ethnic manner of speaking or accent;
  7. religion (see below); and
  8. other attributes.  
• National origin discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s national origin. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Color Discrimination – Title VII and the Texas Labor Code protect employees and applicants of all colors from employment discrimination based their color.  Persons of any color are protected from discrimination because of their color. Color discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s color. The protections of Title VII and the TLC are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Religious Discrimination – Title VII and the Texas Labor Code protect employees and applicants against discrimination based on their religion, including, Christianity, Judaism, Buddhism, Hinduism, Islam and people who have sincerely religious, ethical or moral beliefs.  Religious discrimination includes discrimination against an employee for their religious beliefs, the observance or observation of their religion, their religious practices, religious garb and grooming practices, as well as an employee’s refusal to accept or take part in the beliefs and practices of other religions.  An employer who refuses to “reasonably accommodate” an employee’s religious practices and/or beliefs, by making changes and/or adjustment to the workplace and/or the employee’s job, may be liable for religious discrimination, unless doing so would cause an undue hardship on the employer. Religious discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s religion, their religious beliefs and other practices and characteristics associated with their religion . The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Pregnancy Discrimination – The Pregnancy Discrimination Act (“PDA”) protects female employees and applicants from employment discrimination because of their pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The PDA and the Texas Labor Code are not available to employees of a private employer who had less than 15 employees during the required statutory time-period.  Additionally, impairments resulting from pregnancy may be disabilities under the Americans with Disabilities Act (ADA) and entitle the employee to protection under the ADA as well.  An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent undue hardship.  If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee.  Pregnancy discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. 
• Sex Discrimination and Gender Discrimination – Title VII and the Texas Labor Code protects male and female employees and applicants from employment discrimination based their sex and gender.  As currently written, state and federal, give both sex and gender the same meaning.  Sex and gender discrimination also includes claims of sexual harassment and a hostile work environment against their employer. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during a given statutory time-period. In addition, the Equal Pay Act prohibits sex-based wage discrimination (gender pay discrimination), between men and women who work in the same establishment, who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.
• Gender Identity Discrimination – Currently there is no state or federal laws directly prohibiting an employer from discriminating against an employee or applicant based on gender identity.  However, depending on the circumstances, a knowledgeable and experienced attorney may be able to categorize such a claim as sex discrimination under Title VII and the Texas Labor Code, as described above. For example, a transgendered person who is repeatedly insulted by derogatory comments related to either female or feminine stereotypes and/or male of masculine stereotypes at the workplace may have a claim for sex discrimination against the employer.  Someone who is repeatedly subjected to conduct and comments of a sexual nature at the work place may have a claim for sex discrimination, sexual harassment and a hostile work environment against the employer.
• Sexual Preference Discrimination, Sexual Orientation Discrimination, Gay Discrimination, Lesbian Discrimination or LGBT Discrimination – Currently there is no state or federal law directly prohibiting an employer from discriminating against an employee based on homosexuality (gay or lesbian), heterosexuality, or bisexuality (bisexual) in the workplace.  However, depending on the circumstances, a knowledgeable and experienced attorney may be able to categorize such a claim as sex discrimination under Title VII and the Texas Labor Code, as described above.  Further, someone who is repeatedly subjected to conduct and comments of a sexual nature at the work place may have a claim for sex discrimination, sexual harassment and a hostile work environment against the employer.
• Other Types of Discrimination – There are other types of illegal or unlawful discrimination which is covered by the statutes discussed above as well as others which have not been mentioned.  This list is not intended to be all inclusive.